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PETITIONER: M.P.SHIKSHAK CONGRESS & ORS.

       Vs.

RESPONDENT: R.P.F.  COMMISSIONER, JABALPUR & ORS.

DATE OF JUDGMENT:       01/12/1998

BENCH: Sujata V. Manohar, G.B. Pattanaik.

JUDGMENT:

D E R         The present appeals arise  from  the  judgments  and orders of the Madhya Pradesh High Court under which the High Court  has  unheld the orders of the Regional Provident Fund Commissioner dated 24th of April, 1991  ana  15th  of  July, 1991  directing  the  employer  concerned, being the schools mentioned in the said orders, to deposit,  the  contribution of  the  employees as well as the employers to the provident fund constituted under the  Employees’  Provident  Fund  and Miscellaneous  Provisions  Act,  1952,  for  the  period 1st August, 1982 to 1st December,  1988.    The  writ  petitions filed  by the appellants to challenge these orders have been dismissed by the High Court.  The appellants have filed  the present  appeals  in  a representative capacity on behalf of the teachers and other employees  of  variuous  private  put aided schools in the State of Madhya Pradesh.

       In  the  State  of Madhya Pradesh, under the Central Provinces and Berar  Education  Manual,  1928,  in  Appendix XVIII  there  was a scheme constituting a provident fund for teachers  in  non-pensionable  service,  under  Rule  3   of Appendix  XVIII the proportion of contribution to be paid by the teachers was specified, while under Rule 4, contribution by the Government and by the management of the school to the Provident Fund was also specified.  Pule 6  dealt  with  the management of the Contributory Provident Fund.

       In 1978, the Madhya  Pradesh  Act  20  of  1978  was promulgated  known  as  the Madhya Pradesh Ashaskiya Sikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon  ke  ventano  ka Sandaya) Adhiniyam,  1978.    The preamble of the Act states that it is an act to make provision for  regulating  payment of salaries to teachers and other employees of NonGovernment and Schools receiving grant-in-aid from the State Government and   Non-Government   Educational   Institutions  for  High Education receiving grants from the  Madhya  Pradesh  Uchcha Shiksha  Anudan  Ayog  and  other matters ancillary thereto. The Act was, therefore, basically meant to regulate  payment of  salaries to the employees of the Institutions covered by that Act.

       Under   Section   5   of   the  said  Act  1978  and institutional fund was constituted for payment of salary  to the teachers.  The section prescribes the amounts which have to be  deposited  in  the institutional fund.  Under Section 6(2), the State Government or the Ayog, as the case may  be, was required to place to the credit of the institution fund,

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in  advance, such sums as may be required for the payment of salary  to  teachers  and  employees  of   the   institution including  the  institutions  contribution  to the provident fund accounts at the rate at which it was required  to  make such  contribution under any enactment for the time being in force.  Therefore, the  amount  which  was  required  to  be contributed   as   the  institutions’  contribution  to  any provident fund, was now required  to  be  deposited  in  the institutional  fund, was now required to be deposited in the institutional fund.  The Act of 1978 did not  prescribe  any scheme for provident fund as such.

       Therefore,  the  existing  scheme  for  contributory provident   fund  under  the  Central  Provinces  and  Berar Educational Manual, 1928 continued to remain in force except that the institution’s contribution was now required  to  be deposited in  the  institutional  fund.  The Rules framed in 1978 under the said Act 1978 also did not  set  up  any  new scheme for  contributory  provident  fund.  The Rule of 1978 also did  not  prescribe  any  rate  of  contribution  to  a contributory provident fund.

       The  Rules  of  1978  were, however, replaced by the Ashasiya Shikshan Sanstha Institutional  Fund  Rules,  1983. Under  these  Rules, for the first time, specific provisions were made under Rule 8 for opening of accounts  for  deposit of  salary and teachers’ contribution to the provident fund. Under Rule 10, the deductions to be  made,  inter  alia,  in respect of provident fund were also require to be set out in the  statement in Form IV prescribed under the Rules and the amounts had to be  dealt  with  as  prescribed  under  those Rules.  Sub-rule (6) of Rule 10, however, was as follows :

               "10(6) :        Notwithstanding  anything         contained in rule 8,9 and this rule; where         the provisions of the Employees  Provident         Fund  and  Miscellaneous  Provisions  Act,         1952 (No.    19  of  1952)  apply  to  the         teachers   and   other  employees  of  any         institution, the  provident  Fund  account         and other record relating thereto shall be         maintained    in   accordance   with   the         provisions of the said Act.

       In 1952, much prior to the Madhya Pradesh Act 20  of 1978,  the  Employees’  Provident  Fund  and  Miscellanceous Provisions  Act,  1952  was  promulgated  by   the   Central Government.   The said Act, however, initially did not apply to educational  institutions.    Hence  the   teachers   and employee  of  the  aided  schools in Madhya Pradesh remained under the  Contributory  Provident  scheme  of  the  Central Provinces and  Berar  Educational  Manual.    Even after the Madhya Pradesh Act 20 of 1978  came  into  force,  the  same scheme  continued  with  the  modification  set  out  above. However, by Notification in the Gazette of India  dated  6th of  March,  1982, in exercise of powers conferred by Section 1(30(b) of the Employees’ Provident Fund and  Miscellanceous Provisions  Act,  the  Central  Government specified certain classes of establishments in which 29 or more  persons  were employed, as  covered  by the said Central Act of 1952.  The establishments so covered included any  College  whether  or not  affiliated  with  the  University,  as  also any School whether or not recognised or aided a by the Central  or  the State Government.   It also covered any other institution in which the activity of imparting knowledge  or  training  was

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carried on.  by virtue of this Notification, therefore, from 6th  of  March  1982,  the  Employees’  Provident  Fund  and Miscellaneous Provisions Act, 1952 became applicable,  inter alia,  to  to  the  aided  schools  of  the  State of Madhya Pradesh.

       Thereafter,  by  an amendment to Section 16(1)(b) of the Employees’ Provident Fund and  Miscellaneous  Provisions Act,  1952  made  on 1st of August, 1988, it was provided as follows :

       "Section 16(1): The Act shall not apply -

       (b)     to   any   other    establishment         belonging  to  or under the control of the         Central Government or a  State  Government         and  whose  employees  are entitled to the         benefit of contributory provident fund  or         old  age  pension  in  accordance with any         scheme  or  rule  framed  by  the  Central         Government   or   the   State   Government         governing such benefits; ......"

       We  have  to  examine  whether,  by the amendment of Section 16(1)(b), with, effect from 1st of August, 1988, the Employees’ Provident Fund and Miscellanceous Provisions Act, 1952 ceased to apply to the employees and  teachers  of  the aided schools   of   the  State  of  Madhya  Pradesh.    The respondents contend that in any event, the said Central  Act of  1952 was applicable to all teachers and employees of the aided schools in the State of Madhya  Pradesh  from  6th  of March, 1982 till 1st August, 1988.

       The  appellants,  however,  contend that the Central Act, that is to  say,  the  Employees’  Provident  Fund  and Miscellanceous Provisions Act, 1952 is not applicable to the aided schools  of the State of Madhya Pradesh.  They contend that the Central Act was a prior Act existing  at  the  time when the  State  Act  20 of 1978 came into force.  The State Act of 1978 had received the assent of the president.  Hence under Article 254(2) of the Constitution, in  the  State  of Madhya  Pradesh,  Act  20  of  1978  would  prevail over the Employees’ Provident Fund and Miscellaneous  Provisions  Act 1952.  This argument is fallacious.  Under Article 254(1) of the  Constitution,  if  any  provision  of a law made by the legislature of a State is repugnant to any  provision  of  a law  made  by  Parliament,  which Parliament is competent to enact, then subject to the provisions of clause (2), the law made by the Parliament, whether passed before or  after  the law made by the legislature of such State, shall prevail and the  law  made by the legislature of the State shall, to the extent of the repugnancy,  be  void.    The  ordinary  rule, therefore,  is  that when both the State legislature as well as Parliament are competent  to  enact  a  law  on  a  given subject,  it  is  the  law  made  by  Parliament  which will prevail.  The exception which is varved out is under  clause (2) of  Article 254.  Under this clause (2) where a law made by the legislature of a State with respect  to  one  of  the matters  enumerated  in  the  Concurrent  List  contains any provision repugnant to the provisions of an earlier law made by Parliament, then the law so made by  the  legislature  of such   State   shall,  if  it  has  been  reserved  for  the consideration of the President and has received his  assent, prevail  in  the State, Provided that nothing in this clause shall prevent Parliament from enacting at any time  any  law

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with  respect  to the same matter including a law adding to, amending, varying or  repealing  the  law  so  made  by  the legislature of the State.

       Before clause (2) of Article 254 is attracted, there must  be  a  repugnancy between any provision of a State law and any  provision  of  an  earlier  existing  law  made  by Parliament.   In  the  present case, when the Madhya Pradesh Act 20 of 1978 was enacted, there was no repugnancy  between the  Madhya  Pradesh  Act  20  of  1978  and  the Employees’ Provident Fund and  Miscellaneous  Provisions  Act  of  1952 already enacted  by  Parliament.   The Parliamentary Act did not apply to educational institutions.  The State Act  dealt with  salaries and other ancillary matters governing certain educational institutions.      Therefore,   there   was   no repugnancy between the earlier Parliamentary legislation and the late   State   legislation.    There  was  no  question, therefore,  of   the   State   Act   prevailing   over   the Parliamentary Act  of  1952.    In  fact,  quite clearly the Central Act did not apply to educational institutions either in the State of Madhya Pradesh or anywhere else.

       Secondly, as the preamble and  other  provisions  of the  State  Act 20 of " 978 show, the primary purpose of the State Act was to make provisions for regulating the  payment of  salaries  to  teachers  and  other  employees  of  aided Non-Government schools.  The Act did not  even  provide  for any scheme  for  setting  up  a  Provident  Fund.    The Act incidental required that the institutional  contribution  to any  existing  Provident Fund scheme should be paid into the institutional fund set up under the said Act.    Looking  to the  pith  and  substance  of the State Act of 1975 also, it cannot be said that it in any way made provisions which were repugnant to the Employees Provident Fund and  Miscellaneous Provisions Act, 1952.

       It was by reason  of  the  Not1fication  of  th  of March, 1982 that the Central Act was extended to educational institutions.    The   Employees   ’   Provident   Fund  and MiscelIaneous  Provisions  Act,  1952,   therefore,   became applicable  to  educational  institutions  in  the  State of Madhya Pradesh for the first time on  6th  of  March,  1982. This  was  much later than the enactment of the State Act 20 of 1378.   The  ParIiamentary  enactment,  therefore,  would prevail  over  the  State  Act 20 of 1978, assuming that the State Act  of  1978  created  of  affected  any  scheme  for Provident Fund Article 254(2), therefore, has no application in the present case.

       The  Appellants,  however, relied upon a decision of this Court in the case of Pt.Rishikesh & Anr.    v.    Salma Begum  (Smt.)  ([1995]  4  SCC 718) in which this Court said that if a law is made by Parliament at a given date, but  is brought  into  force  at  a  later  date,  then,  if  in the interregnum, a State law is  made  which  has  received  the assent  of  the President the State law will prevail because the law made by Parliament is an earlier law.    This  ratio has  no  application  to  the present case where the Act was already in force from inception.  This law in force was  not repugnant to  the  State  Act.  when the State Act came into force.  The Central Act.  however, in the present case,  was appiled to educational institutions at a date later than the State Act.   Hence the repugnancy arose only at a later date when  the  Central  Act  became  applicable  to  educational institutions.  In such a situation, there can be no question

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of  the application of Article 254(2) because the repugnancy arose later in point of time than the State Act.   Moreover, in  the  present  case,  there  is no question of repugnancy between the two Acts si nce the State Act of 1978  does  not provide for any Provident Fund Scheme.

       However, after the  application  of  the  Employees’ Provident  Fund  and  Miscellaneous  Provisions Act, 1952 to education institutions, in 1963 new Rules were framed by the State of Madhya Pradesh under Act 20 of  1978.    These  are referred to  as  the  State  Rules of 1383.  Under the State Rules of 1983, for the first time a scheme was set  out  for Contributory   Provident  Fund  covering  the  teachers  and employees of aided school .  The State Government,  however, was conscious of the fact that the employee ’ Provident Fund and Miscellaneous Provisions Act, 1952 was applicable in the State of  Madhya  Pradesh.   Therefore, by Rule 10(6) of the State Rules of 1983, it was provided that the scheme as  set out  in  the  State  Rules of 1983 would not apply where the provisions   of   the   Employees’   provident   Fund    and Miscellaneous Provisions   Act,   1952   apply.     Clearly, therefore, far from there Deing  any  conflict  between  the State  and the Central Legistation, the State Legislation by Rules framed "in 1383 has excluded from the operation of the State scheme as framed under the 1983 rules, those employees to whom the Central Act apples.

       In  this  view  of the matter, there can be no doubt that for the period 1st August, 1982 to 1st August, 1983 the Employees’ Proviaent Fund and Miscellaneous Provisions  Act, 1952  was  applicable  to such teachers and employees of the aided schools in the State of Madhya Pradesh who are covered by the provisions of the  scheme  framed  thereunder.    The orders   of   the  Regional  Provident,  Fund  Commissioner, therefore, in so far as the  orders  cover  the  period  1st August, 1982 to 1st August, 1988 are valid.

       The   said   orders,   however,  also  refer  to  an additional period from 1st of August, 1988 to 1st  December, 1988.   According to the appellants, 1st of August, 1988, by virtue of the amended Section  16(1)(b)  of  the  Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 coming into  effect in the provisions of the 1952 Act are no longer applicable to them.  Section 16(1)(b) provides that the 1952 Act will not apply to any establishment under the control of the State Government whose employees  are  entitled  to  the benefit  of  Contributory  Provident Fund in accordance with any scheme framed by the State  Government  conferring  such benefits.   Whether  on  1st  of August, 1988, there was any scheme in existence of the State Government which  conferred Contributory Provident Fund benefit to the employees covered earl ier by the Central Act of 1952 or not is a matter which the  Regional  Provident  Fund  Conrimissioner  will have to examine if such a contention is raised  before  him  by  the appellants.

       We, therefore, remit the  matter  to  the  concerned Regional  Provident  Fund  Commissioner only for the limited purpose of examining whether for the period 1st  of  August, 1986  to  1st of December, 1988 the provisions of Employees’ Provident Fund and Miscellaneous Provisions  Act,  1952  are applicable to  the  concerned  institutions.    The  orders, however, for the period 1st August, 1982 to 1st August, 1988 are upheld.

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       The  appels are accordingly dismissed with the above modification.